SCA ruling: Single parents can now apply for school fee exemption

without their partners’ consent.

Introduction

In light of the recent decision handed down by the Supreme Court of Appeal (“SCA”), Head of
Department Western Cape Education Department and Others v Saffer (1209/2016) [2017]
ZASCA 187 (13 December 2017), single parents who are divorced or separated no longer
require their former partners’ consent in order to apply for a fee exemption for their children.

The SCA overturned the decision of the Western Cape Division of the High Court and
delivered a landmark ruling which allows single parents to apply for a fee exemption without
submitting their partners’ income. This ruling allows public schools to grant fee exemptions
to single parents based solely on their annual income and will alleviate financial pressure of
many single parents in South Africa.

Background

Section 40(1) of the South African Schools Act 84 of 1996 (“the Act”) provides that ‘A parent
is liable to pay the school fees determined in terms of section 39 unless or to the extent that
he or she has been exempted from payment in terms of this Act.’

In terms of the common law, parents have a duty to support their child in accordance with
their respective means. Historically, the custodian parent could be held liable for the full
outstanding amount of school fees and have a right of recovery against the other party for
his/her proportionate share. The responsibility for recovery of the proportionate share was
not on the school, but on the custodian parent. This placed an onerous burden on single
parents.

Moreover, the previous position with regards to the school fee exemption policy in South
Africa was that the school’s governing body determined annual school fees, as provided for in
Exception of Parents from the Payment of School Fees Regulations, 1998 (“the Regulations”).
The Regulations created an income test to calculate whether an exemption of school fees
should be allowed. The income test reads as follows: “if the combined annual gross

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 SCA ruling: Single parents can now apply for school fee exemption
without their partners’ consent.

income of the parents is less than ten times the annual school fees per leaner, the parent
qualifies for full exemption.” (Our emphasis.) Partial exemptions were available to those
whose income were more than ten times but less than thirty times the annual fees. The
income test was premised on the combined annual gross income of the parents, and paid no
regard to situations where the combined annual income was unobtainable.

Western Cape Decision

Michelle Safffer (“Saffer”), a divorced single mother could not afford the annual school fees at
her daughter’s school, proceeded to apply for a fee exemption. In response, the school
informed her that the exemption application form required the combined annual gross
income of both biological parents of the child. Saffer appealed the school’s refusal of her fee
exemption application to the Western Cape Education Department. Saffer, who is the
custodial parent of her daughter, had a difficult history with her former spouse and regarded
the school’s refusal to expect her application to be conditional upon the co-operation of her
ex-husband to be unreasonable and discriminatory. The Western Cape Educational
Department also rejected Saffer’s exemption application and she accordingly approached the
Western Cape High Court for relief.

On 15 September 2016 the Western Cape Division of the High Court held that section 40(1)
of the Act imposes a joint liability on parents and that both parents’ income must be
produced when applying for an exemption. Whilst the court a quo recognised the immense
burden that single parents faced, it held that parents were jointly liable for payment of school
fees and maintained that both parents had to produce income statements when applying for
exemption. This judgment did not offer Saffer, and other single parents in similar situations,
the declaratory relief sought. It remained impossible for single custodian parents to obtain a
fee exemption without the cooperation of their former partners. This placed an immense
burden on single custodian parents and the law, alternatively the interpretation of the law,
was in serious need of reform.

The Supreme Court of Appeal Judgement

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 SCA ruling: Single parents can now apply for school fee exemption
without their partners’ consent.

The SCA finally recognised the potentially vulnerable position that the Act and Regulations
pose to single parents. The principal issue under consideration was whether liability of
biological parents for school fees at public fee paying schools, as provided for in section 40(1)
of the Act, is that of joint liability, or whether it is joint and several liability.

The SCA, found that upon a proper interpretation of section 40(1), it compels a conclusion
that parents are jointly and severally liable for payment of their children’s school fees, as
opposed to jointly as held by the court a quo. The SCA thereafter had to consider whether the
consequences are such as to impact disparately, negatively and ultimately unlawfully on
single parents who are separated from their partners or divorced from their spouses. The SCA
found that section 40(1) provides a safety valve in that joint and several liability is eased by
the proviso ‘unless or to the extent that he or she has been exempted from payment in terms
of this Act.’ The SCA held that the impugned legislation is capable of being read in a manner
that is constitutionally compliant.

Whilst the SCA held that section 40(1) imposes joint and several liability, it amended the
previous position by allowing parents to be liable for their proportionate share of the fees
only, as opposed to the full amount. If the custodial single parent is not able to afford his/her
pro rata share of the fees, such a parent can apply for a total or partial fee exemption of
his/her share of the fees. The fee exemption would be the total or partial fee exemption to
which the single custodian parent would have been entitled had he or she been the only
parent. If the Act and regulations, properly construed, are to be applied, the complaint of
unequal treatment fall away.

The SCA unequivocally did away with the notion that both parents’ income has to be
produced in these circumstances. Fee exemptions can no longer be refused on the basis that
the non-custodial parent is able to afford the full fee. The SCA made it clear that in
circumstances where a recalcitrant parent has refused or failed to provide his/her income
details, public schools will only have regard to the single custodial parent’s income. All public
schools, governing bodies and education Departments have to comply with the SCA

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 SCA ruling: Single parents can now apply for school fee exemption
without their partners’ consent.

judgment forthwith in relation to all parents who are in the same or similar situation as the
Applicant. Public schools may still take legal action to enforce payment by the other parent to
ensure that the balance of the school fees are settled, however this burden no longer rests
on the custodian parent.

According to South African Child Gauge 2016, 40.6% of children in South Africa were residing
only with their biological mother, whereas 3.7% of the children where living only with their
biological fathers. In addition, Statistics SA released that 55.6% of divorce cases in 2015
involved couples with children younger than 18 years. The number of children in South Africa
being raised by single parents, especially single mothers, is recognised to be among the
highest in the world. In light of the prevalent socio economic circumstances and a history of
disparity and discrimination, this judgment has ground-breaking consequences seeing as
single custodian parents, who are mostly women, no longer have to bear the grunt.

Conclusion

Gone are the days were single custodian parents are prejudiced by their former partners’
lack of cooperation. Single custodian parents are no longer at their estranged partners’ /
former spouses’ mercy and may very well be entitled to a fee exemption based solely on
their lack of financial means. Fee-exemption applications can now be processed to enable
single parents separated from their partners or divorced from a spouse to have their
applications assessed in relation to their own personal circumstances and not on combined
income.

The SCA judgement does not only provide custodial single parents with clarity as to their
position with regards to applying for fee exemptions, but also alleviates the burden single
parents may face in providing access to education for their children, which is ultimately a
fundamental right entrenched by section 29 of our Constitution and in line with the
paramountcy that must be afforded to the best interests of the child.

Authors: Nicola du Toit, Associate and Jeannique Booysen, Candidate Attorney

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 SCA ruling: Single parents can now apply for school fee exemption
without their partners’ consent.

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